Just past the forty-minute mark of Monday’s oral argument in Trevino v. Thaler, Justice Kennedy gently but firmly reproached two of his colleagues for teasing each other about their opposing views in a prior case, sarcastically suggesting that “[t]his is very amusing in a capital case.” If the rest of Monday’s argument is any indication, a clear majority of the Court appears to share Justice Kennedy’s lack of amusement – not with the perhaps ill-timed humor of Justices Breyer and Scalia, but with the extent to which Texas law is not completely clear on whether a capital defendant should challenge the effectiveness of his trial counsel for the first time on direct appeal or in a collateral post-conviction proceeding. Indeed, inasmuch as Monday’s argument appeared to do little to clarify the state of the law, it seems likely that the Court will extend its decision last Term in Martinez v. Ryan to Texas capital cases.

The practical result of such a holding is clear: Texas capital defendants who receive ineffective assistance from their collateral post-conviction counsel in challenging the effectiveness of their original trial counsel will be allowed to challenge the effectiveness of their trial counsel for the first time in a federal habeas petition. (In doctrinal terms, the ineffectiveness of collateral post-conviction counsel will provide “cause” to excuse the defendant’s default in not presenting the ineffectiveness-of-trial-counsel claim to the state court.) But the broader implications – and whether the Court will limit its analysis to Texas capital cases – remain to be seen.

As we noted in our argument preview, Trevino presents a deceptively simple question: Can capital defendants in Texas meaningfully challenge the effectiveness of their trial counsel on direct appeal? Last Term’s Martinez decision dealt with states that bar defendants from raising such claims on direct appeal, and that thereby require such claims to be brought in the first instance in collateral state post-conviction proceedings. Thus, in states like Arizona, there is literally no opportunity for a defendant to challenge the effectiveness of his trial counsel until the collateral post-conviction proceeding.

Texas law includes no similar bar, and yet, as San Antonio lawyer Warren Wolf repeatedly emphasized in his argument for the petitioner, the state courts and the relevant practice guides all emphasize the practical difficulties inherent in raising such claims on direct appeal. Thus, in response to questioning from Justice Ginsburg, Wolf appeared to score some points in explaining the difficulties that counsel face when trying to expand the factual record on appeal. And while such record expansion is often a prerequisite to ineffective assistance cases, since the trial record will likely be unhelpful in revealing what trial counsel did not do, it is especially significant in cases (like Trevino)in which a capital defendant raises a “Wiggins” claim, i.e., that trial counsel failed to conduct an adequate investigation of potential mitigation evidence to be presented at the penalty phase.

Indeed, an early clue that the Justices were already sympathetic to Wolf’s arguments came from Justice Kennedy, whose first question of counsel for the petitioner went to the precise contours of the rule he would like the Court to hand down (a sentiment echoed several minutes later by Justice Sotomayor). Whereas Justice Kennedy’s question raised the specter of the Court having to intervene in every state’s criminal justice system to decide whether particular claims were “meaningfully” appealable at particular stages, Wolf parried by emphasizing the uniqueness of Texas’s procedure – melding the formal availability of direct appeal with the practical difficulties he had been describing. Thus, Wolf suggested, the Court would only have to decide the Martinez issue on a state-by-state basis in those jurisdictions that included such rigid limits on the ability of appellate counsel to supplement the trial record. Although Kansas and Michigan, for example, set their appellate system up in a similar fashion, both have also formalized a more generous procedure for such record supplementation on direct appeal – and might therefore not raise the same issues as Texas.

Arguing on behalf of Texas, Deputy Solicitor General Andrew Oldham appeared to face an uphill battle. From the start, Justices Ginsburg and Kennedy (joined a few minutes later by Justice Kagan) pressed him to explain how appellate counsel could meaningfully seek to expand the record within the limited timeframe mandated under Texas law – especially when, as in this case, the trial transcript isn’t available until seven months after the sentencing. Although Oldham held his ground in emphasizing what appellate counsel could attempt under Texas law, he appeared to make little headway in convincing any of the Justices from the Martinez majority that such attempts had been effective in more than an exceptionally small (and perhaps aberrational) set of cases.

But perhaps the most telling moment of the argument came a bit later, as part of a colloquy between Oldham and Justices Breyer and Scalia. Justice Breyer appeared to be returning to the issue Justices Sotomayor and Kennedy had pursued during petitioner’s argument: how to structure a rule that would not necessarily drag the Court into an examination of each state’s post-conviction procedures. He thus asked Oldham how the logic of Martinez should apply to a hypothetical state in which direct appeals were formally available but completely unavailable in practice. Justice Scalia responded by teasingly alluding to his “nose of a camel” dissent in Martinez, which had criticized the majority for hiding such a potentially massive shift in the Court’s jurisprudence with regard to a defendant’s entitlement to collateral post-conviction counsel behind a seemingly narrow, Arizona-specific holding – with both Justices drawing laughter from the gallery. At that point, a clearly piqued Justice Kennedy turned to the elephant in the room, suggesting that “[t]his is very amusing in a capital case.”

Whether Kennedy meant to scold his colleagues or merely underscore the urgency of the Justices’ endeavor is unclear. But given that Trevino’s is only one of a handful of pending Texas capital cases raising this issue, and that the rest of Oldham’s argument appeared to do little to clarify, at least from the Justices’ perspective, what Texas law allows, it seems clear that what failed to amuse Justice Kennedy was not his colleagues’ banter, but rather the idea that the state might not have to ever provide a capital defendant, in particular, with a meaningful opportunity to challenge the effectiveness of his trial counsel. Thus, insofar as Oldham failed to disabuse Justice Kennedy (or any of the other six Justices in the Martinez majority) of that notion, the outcome may well have been sealed long before Wolf returned to the podium for his seven-minute rebuttal.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.